The Trustee for the Purcell Family Trust t/a Mainstream Marine v Williams
[2022] QCATA 179
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- The Trustee for the Purcell Family Trust t/a Mainstream Marine v Williams[2022] QCATA 179
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The Trustee for the Purcell Family Trust t/a Mainstream Marine v Williams[2022] QCATA 179
The Trustee for the Purcell Family Trust t/a Mainstream Marine v Williams[2022] QCATA 179
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | The Trustee for the Purcell Family Trust t/a Mainstream Marine v Williams [2022] QCATA 179 |
PARTIES: | the trustee for the purcell family trust t/a mainstream marine (applicant) v christopher williams (respondent) |
APPLICATION NO/S: | APL071-22 |
ORIGINATING APPLICATION NO/S: | MCDO320/20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 21 November 2022 |
HEARING DATE: | 8 November 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: |
|
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer and trader dispute – where action for compensation – where contract for repairs to motor boat – where repairs alleged to be seriously defective – where repairer claims damage caused by poor maintenance – where consumer seeks to obtain summary decision by miscellaneous matters application – where tribunal orders summary judgment for consumer – where tribunal believes no defence offered or foreshadowed – where material raising triable issue not before primary tribunal – where summary decision set aside and retrial ordered Competition and Consumer Act 2010 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Forms 1, 6, 40 Agar v Hyde (2000) 201 CLR 552 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr J Purcell |
Respondent: | Self-represented |
REASONS FOR DECISION
Introduction
- [1]This case is concerned with the mechanical health of the `Black Pearl’ a handsome motor boat owned by the present respondent (‘Williams’).
- [2]In or about October 2017 Williams found that its engines were overheating; so he sent it for investigation and repairs to the applicant for leave to appeal (‘Mainstream’), at Woongoolba, near Queensland’s Gold Coast.
- [3]Between October 2017 and August 2018 Mainstream sent frequent ‘Service Reports’ to Williams. On 30 June 2018 the firm reported ‘vessel performing well but does not achieve full RPM’, and on 17 August 2018: ‘Sea trial vessel and check over – OK’.
Differences arise
- [4]But soon after Mainstream’s ministrations Williams did not agree that Black Pearl was performing well. On 31 January 2019 Williams sent Mainstream a report by Seatech Marine, which prides itself as ‘the Gold Coast’s largest marine engine service … with the biggest team of qualified and certified technicians.’
- [5]According to Seatech[1] Black Pearl’s starboard engine was leaking oil or coolant at several points.
- [6]Subsequently Williams obtained a second report from another Gold Coast marine engineer, who found that Black Pearl’s machinery had numerous defects, including overheating, serious oil leaks, excessive vibration and a danger of engine bearing failure – in sum, according to the reporter it was ‘very sloppy workmanship’.[2]
Williams commences action
- [7]Armed with these opinions Williams, as consumer, began this action against Mainstream, as trader, on 12 May 2020, alleging inter alia that the latter’s work and materials were unfit for purpose within the meaning of the guarantees imposed by the Competition and Consumer Act 2010. The indorsement on Williams’ Form 1 reads: ‘Order Mainstream Marine to pay the sum of $9,391.32[3] to repair their faulty workmanship’.
- [8]Particulars follow on 2 pages annexed to the Form 1. Williams alleges that:
During the period from November 2017 through to December 2017 Mainstream Marine rebuilt the Mercruiser engines and ZF gearboxes in my boat the Black Pearl a Searay 375 at a cost of approximately $46,000 … There were numerous issues with the rebuilds in December 2017 … including fluid leaks in the engines … [L]eaks were present very early after the engine rebuilds. … I am seeking compensation for the faulty workmanship … so that Seatech Marine can rectify the leaks.
- [9]In the same document Williams acknowledges (and refutes) Mainstream’s ‘claims that the leaks are the result of over pitched or oversized propellors putting a strain on the engines’.
- [10]Mainstream filed no formal response, mediation was unsuccessful, and the matter remained in abeyance until 12 February 2021. On that date Williams, acting on the advice of QCAT’s Southport registry given five months earlier[4], filed an application for miscellaneous matters (as distinct from a decision by default). The material part of that application reads:
I apply to the tribunal for the following directions [sic] … That Mainstream Marine (Jon Purcell) be ordered to reimburse me for the rectification of [its] faulty workmanship, being an amount of $11,166.15. Invoices for the rectification and hard stand fees are attached.
- [11]Also attached was a copy of the abovementioned report of Seatech Marine.
Miscellaneous matters application
- [12]On 12 February 2021 QCAT’s local registry advised the parties that a Form 40 had been lodged, adding that ‘you may make written submissions by 4pm on 18 February.’ In any event (it went on) ‘the matter will be placed before an adjudicator on 19.2.21 for consideration and directions.[5]
- [13]The words italicised are procedural or interlocutory rather than determinative; they lack the tone of urgency and potential finality of an application for judgment by default[6], or a warning commonly given by the tribunal, that failure to comply with an order will entitle it ‘to make orders in your absence without further notice to you’. The registry’s notice of 12 February 2021 gave an assurance that : ‘Parties are not required to appear in person on [19 February] but may be required at a later stage’. As noted, written submissions were ‘permitted’ but not ordered or required.
- [14]The Form 40 application came before an adjudicator on 19 February 2021, when it was dealt with on the papers. The transcript (title page omitted) occupies less than 3 pages.
- [15]The adjudicator observed:
Of significance is that no written submissions have been supplied by the respondent [Mainstream] in opposition to this miscellaneous application, or in contradiction to the facts referred to in the reports supporting the application … In the present circumstances there is sufficient evidence for me to make final orders, particularly in the absence of any resistance from the respondent.[7]
Summary decision
- [16]The adjudicator then ordered that:
[T]he respondent pay the applicant [Williams] $11,289.35[8] on the basis of the amended claim and the evidence supporting it and the absence of any resistance or suggestion to the contrary by the respondent.[9]
- [17]The application for consideration and directions morphed into a judgment for default of defence.
Material absent from hearing
- [18]Evidently the following evidence was not drawn to the adjudicator’s attention: On 18 February 2021 Jonathan Purcell of Mainstream sent this letter to QCAT Southport:
In response to the Application for Miscellaneous Matters Case No Q320/20 please note that the issues stated were not present following the work carried out by Mainstream Marine. It would appear that lack of maintenance by Mr Williams has resulted in the costs incurred by him.
- [19]Williams was already aware of this potential defence when he began these proceedings on 12 May 2020. An annexure to the initiating application[10] states:
Mr Purcell claims that the leaks are the result are the result of over pitched or oversized propellors putting a strain on the engines … The propellors are the original factory supplied propellors from Searay who are one of the largest boat builders in the world.
- [20]However, the tribunal’s brief includes a bill from Watson Marine Engineering to Williams, dated 18 September 2020 for ‘Labour – Remove and refit of propellors [and] tighten rudder glands’. There is also a cash sale invoice dated 28 September 2020 for ‘repitch[ing] 1 x set of R+L/hand 17 x 19P to original pitch’.
Triable Issue
- [21]Be that as it may, it is not the case that there is no triable issue between the parties. Of course the terse assertion of poor maintenance (in the manner of traditional pleading) demands detailed and persuasive evidence for Mainstream, and it is not for an appeal tribunal, dealing with an application for leave to appeal, to express or imply any opinion on what the merits of such a defence might be.
- [22]Courts of high authority have warned again early termination of proceedings without trial. A party seeking summary judgment faces ‘a very high threshold’.[11] The summary procedure calls for ‘exceptional caution’,[12] and the absence of a cause of action [or defence] must be ‘clearly demonstrated’.[13] Other pronouncements by the High Court are to the same effect:
The power to order summary judgment or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
Ordinarily, a party is not to be denied the opportunity to place his [14]or her case before the court in the ordinary way.[15]
- [23]It must be emphasised that for reasons unknown, the adjudicator did not have the benefit of reading Mainstream’s submission of 18 February 2021, which, sparse though it is, clearly takes issue with Williams’ version of the case. It should also be noted that, even in the circumstances as seen by the adjudicator, the latter acted with some hesitation.[16] With respect, I venture to think that if the adjudicator had seen that submission, he would have declined to enter summary judgment.
Defence preparation overdue
- [24]It cannot be denied that so far Mainstream and Mr Purcell have treated these proceedings in an excessively casual manner. Nevertheless Mainstream has raised a triable issue, and accordingly the summary decision cannot stand. It goes without saying that, if Mainstream is serious in its defence, its case demands a lot more attention, and much greater specificity, than it has so far received. Mainstream would be well advised to contemplate the words of Wilson J, a former President of this tribunal, in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd:
In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences.[17]
Conclusion
The third order[18] made in these proceedings on 19 February 2021 must be set aside. In lieu thereof this dispute is remitted to the registry, to be retried by a different adjudicator on an expedited date to be notified to the parties.
ORDERS
- Leave to appeal is granted.
- The appeal is allowed.
- The decision of the primary tribunal, made on 19 February 2021 that the present applicant Mainstream Marine pay the present respondent Christopher Williams $11,289.35, is set aside. In lieu thereof this matter is remitted to the registry, to be retried by a different adjudicator on a date to be expedited and notified to the parties.
Footnotes
[1]Email Seatech to Williams 31 January 2019 1.49pm.
[2]‘Engine Issues Report’, Rick’s Gold Coast Marine 5 February 2021 (2 weeks before the tribunal’s decision).
[3]Later amended to $11,166.15.
[4]Email Southport registry to Williams 20 August 2020: ‘In order to progress this matter you will need to lodge a Form 40 (a miscellaneous matters application).
[5]Emphasis added.
[6]See e.g QCAT Form 6.
[7]Transcript of proceedings 19 February 2021 (‘T’) page 3 lines 27-29, 34-35.
[8]Including filing fees of $123.20.
[9]T page 4 lines 9-11
[10]Application for minor civil dispute 12 May 2020.
[11]Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at [12].
[12]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.
[13]Ibid.
[14]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at [27].
[15]Agar v Hyde (2000) 201 CLR 552 at [57].
[16]T page 3 line 21.
[17]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [12].
[18]Namely: ‘The Respondent pay the Applicant $11,289.35’.